Defendant
is charged with possession of a firearm on March 23, 2017, by
a convicted felon, in violation of 18, United States Code,
Section 922(g). In moving to suppress, defendant contends
that state law enforcement officers violated his Fourth
Amendment protections when they conducted a search of his
backpack after he was arrested, handcuffed, and removed from
the room where the backpack was located. In response, the
government contends that defendant lacks standing to
challenge the search as he disclaimed ownership of the bag at
the time of arrest and that even if he has standing, the
search was lawful as one incident to arrest. Having conducted
an evidentiary hearing, reviewed the pleadings submitted by
the parties, and considered the exhibits, the Motion to
Suppress will be denied for the reasons that follow.

I.

On
March 23, 2017, a number of state law enforcement officers
conducted a warrantless search of a state probationer's
home. Among the officers were Officer J. D. Bensavage, a
North Carolina Probation and Parole Officer, and Detective T.
E. Grosse, Charlotte Mecklenburg Police Department, who was
also a member of the local ATF Task Force. Upon entering the
home of the state probationer, officers smelled the odor of
marijuana emanating from the living room, immediately
adjacent to the home's front door. Officers observed
defendant in possession of a marijuana blunt.

Three
officers included in their police reports that they saw
defendant holding a black backpack.[1] Officer Bensavage stated in
his report, as follows:

Mr. Ferebee also picked up a black backpack with his left
hand as he stood up and held it out to his side as Officer B.
Sinnott search his person due to his possession of marijuana.
Mr. Ferebee appeared nervous and this Officer asked him if he
had any weapons in his bag. He replied this isn't even my
bag.

Def. Exh. 1 (#13-1 at 1). At the hearing, Officer Bensavage
testified that he saw defendant pick up the bag from the
floor, stand, hold it out towards the officers, and disclaim
ownership of the bag. He also testified that before defendant
picked up the bag, it was located near defendant who was
sitting on a loveseat or small sofa.

A
body-cam video was also played at the hearing. While there
was no audio, the video briefly shows defendant being led out
of the room before the backpack was searched. The evidence
presented indicated that the bag was searched in the living
room after defendant had been led out the adjacent front door
in handcuffs, but that the front door remained open during
the search.

The
warrantless search of the backpack revealed a mason jar of
marijuana (approximately 11 grams), digital scales, a
marijuana grinder, a pistol, and defendant's South
Carolina issued identification. Testimony at the hearing
indicated that a second firearm was found under the cushion
where defendant was sitting. The charge in this case stems
from the pistol in the backpack only. Subsequent to the
search of the backpack, defendant claimed ownership of the
backpack.

II.

If an
officer smells the odor of marijuana in circumstances where
the officer can localize its source to a person, the officer
has probable cause to believe that the person has committed
or is committing the crime of possession of marijuana.
United States v. Humphries, 372 F.3d 653, 659 (4th
Cir. 2004). Armed with probable cause, the officer may both
arrest and search the arrestee. United States v.
Day, 591 F.3d 679, 696 (4th Cir. 2010). During a search
incident to arrest, law enforcement officers are permitted to
search the area within the arrestee's “immediate
control, ” or “the area from within which he
might gain possession of a weapon or destructible
evidence.” Chimel v. California, 395 U.S. 752,
763 (1969).

Prior
to reaching the Fourth Amendment issue, it is defendant's
burden to establish that he has standing to challenge the
search. Rakas v. Illinois, 439 U.S. 128, 134 (1978).
A defendant has standing where he shows that he had a
legitimate expectation of privacy in the particular area or
item searched. United States v. Davis, 430 F.3d 345,
359-60 (6th Cir. 2005); United States v. Avent, 162
F.3d 1156 (4th Cir. 1998). In considering whether defendant
has demonstrated a legitimate expectation of privacy, courts
consider: (1) whether the defendant has manifested a
subjective expectation of privacy in the particular area
searched; and (2) whether society is prepared to recognize
this expectation of privacy as objectively reasonable.
California v. Greenwood, 486 U.S. 35, 39 (1988).

It is
well established that a person has a reasonable expectation
of privacy in backpacks or bags they may be carrying or are
within their immediate control, Bond v. United
States, 529 U.S. 334, 337 (2000), as such expectation of
privacy is well within those society is prepared to
recognize. Katz v. United States, 389 U.S. 347, 361
(1967) (Harlan, J., concurring). The issue here concerns the
first Greenwood factor, which is whether defendant
“manifested a subjective expectation of privacy”
when he stated that it was not his bag and held it out
towards the approaching officers. At oral arguments,
defendant first called into question the veracity of Officer
Bensavage's testimony concerning defendant's
disclaimer. Defendant argued that no other officer included
defendant's alleged disclaimer in their
reports[2] and that counsel would have liked to
question other officers, especially Officer
Sinnott.[3] The Court found Officer Bensavage's
testimony to be most credible based on his demeanor during
his testimony. Not only was Officer Bensavage's testimony
believable, it was consistent with his statement (#13-1) and
the statements of other officers. Indeed, when counsel for
the government attempted to elicit testimony from Officer
Bensavage consistent with its theory that defendants placed
in handcuffs can break out of those restraints, he testified
that he had no knowledge of such occurrences. The Court finds
that Officer Bensavage testified truthfully and did not
embellish his testimony even when given a clear shot at
bolstering the search incident to arrest. The credible
evidence before this Court is simply that defendant
disclaimed ownership of the backpack while extending the
backpack in the direction of the approaching officers. Based
on the credible testimony presented by Officer Bensavage, the
fact that other officers did not include the disclaimer in
their reports does not give this court reason to discredit
either his report or his sworn testimony.

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Having
determined that defendant disclaimed ownership of the
backpack and extended the backpack to the approaching
officers at the time of arrest, the Court must now consider
whether such words and actions were sufficient to amount to
abandonment of defendant&#39;s privacy interest in the bag.
While a defendant can certainly have a legitimate expectation
of privacy in a backpack, those legitimate expectations can
be abandoned. Abel v. United States, 362 U.S. 217,
241 (1960). Determining whether abandonment has occurred is a
fact-intensive inquiry and can be inferred from words, acts,
and other objective facts. United States v. Colbert,
474 F.2d 174, 176 (5th Cir.1973) (en banc). To make
this determination, a court must consider the totality of the
circumstances surrounding the search. Rawlings v.
Kentucky, 448 U.S. 98, 104 (1980); Rakas, 439
U.S. at 150-52 (Powell, J., concurring). Indeed, a defendant
can abandon his or her expectation of privacy by disclaiming
interest and walking away from a ...

Our website includes the first part of the main text of the court's opinion.
To read the entire case, you must purchase the decision for download. With purchase,
you also receive any available docket numbers, case citations or footnotes, dissents
and concurrences that accompany the decision.
Docket numbers and/or citations allow you to research a case further or to use a case in a
legal proceeding. Footnotes (if any) include details of the court's decision. If the document contains a simple affirmation or denial without discussion,
there may not be additional text.

Buy This Entire Record For
$7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.